Are there circumstances where it would be possible to change, for example, the general plan land use designation of a 1,000 acre parcel from “open space” to “residential,” “mixed use,” and/or a hotel use without complying with the California Environmental Quality Act, even though potentially significant impacts could result from the change? In one of this year’s more important land use decisions, the California Supreme Court has answered that question with a clear and affirmative “Yes.”

The context of the Court’s decision is that of a “qualified” voter-sponsored ballot measure. For most local jurisdictions (i.e., a city or a county), a measure “qualifies” for the ballot when at least fifteen percent of the number of registered voters within the jurisdiction sign a petition to place the proposal on the ballot. Once sufficient signatures are confirmed, the legislative body of that jurisdiction (the City Council or the Board of Supervisors) has the choice of either placing the measure before the voters or approving the measure itself without change. Those are the only options. It has long been clear that if the measure is placed on the ballot and approved by voters, CEQA does not apply. However, the California Supreme Court has now determined that if the City Council or Board of Supervisors approves the measure itself rather than sending it to the voters, CEQA still does not apply.

This case, Tuolumne Jobs and Small Business Alliance v. Superior Court, involved a voter-sponsored ballot measure to convert an existing Wal-Mart store in the City of Sonora into an expanded Wal-Mart SuperCenter. After the traditional permitting and CEQA process had started, project proponents circulated a ballot measure to adopt a specific plan for the SuperCenter through an initiative. When petitions with the required number of qualified signatures were submitted, the Sonora City Council chose to adopt the initiative measure approving the specific plan rather than place it on the ballot. It did so without undertaking any CEQA review.

The Supreme Court held that because the City Council lacked discretion to do anything but place the measure on the ballot or adopt it, it could not have amended the proposal or imposed conditions of approval. As a result, the Council had no ability to “mitigate” any of the project’s impacts. Thus, the Council’s action was ministerial and not subject to review under CEQA.

We should be clear about when CEQA does and doesn’t apply in the context of ballot measures. First, a city council or board of supervisors can place a measure on the ballot even where there is no voter-sponsored petition effort. In that situation, placing the matter on the ballot is a discretionary act and generally requires CEQA review. Second, if a voter-sponsored initiative qualifies for the ballot and is placed before the voters, that measure is not subject to CEQA. Third, under this most recent decision, if the voters qualify a measure and the city council or board of supervisors decides to adopt it, that action also is not subject to CEQA.

A final important consideration is that the initiative process can only be used to enact legislative approvals. Examples of legislative approvals are general plan amendments, specific plans, zone changes, and development agreements. Non-legislative approvals include, among other things, subdivision maps, site plan reviews, variances, and use permits. Those non-legislative approvals cannot be granted by initiative and, therefore, are beyond the scope of the Supreme Court’s Tuolumne decision.